Mr David Wayne Mitchell v Coles Group Supply Chain Pty Ltd

[2010] FWA 4753

[2010] FWA 4753

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr David Wayne Mitchell
v
Coles Group Supply Chain Pty Ltd
(C2010/3743)

COMMISSIONER CLOGHAN PERTH, 1 JULY 2010

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] .

[1] On 18 May 2010, Mr David Wayne Mitchell (“the Applicant”) made application to Fair Work Australia to deal with a dispute in accordance with a Dispute Resolution clause in the Coles Liquor Distribution Centre WA Agreement 2009 (“the Agreement”).

[2] The Respondent Party to whom the Applicant is in dispute is the Coles Group Supply Chain Pty Ltd (“the Employer”).

THE DISPUTE

[3] The dispute as set out by the Applicant in his application is as follows:

• I seek assistance in resolving the terms and conditions of my employment. My employee Coles Group Supply Chain Pty has kept me off work for the past 6 months claiming that I am not fit for the inherent duties I am employed to fulfil.



• This situation arose after I was injured and filed a workers’ compensation claim in March 2009. In December 2009 after a meeting with Emma Smith the Distribution Manager of the Kewdale Liquor site and Cheryl Anders a representative of WesSAFE I was informed my restricted duties were no longer able to be provided by the company (copy letter dated 15th December 2009 signed Emma Smith). This confused me as I had been returned to my pre injury role as an Administrative duties ancillary to the operation of a distribution centre immediately after my injury and had worked that role for 9 months without any time off.

COLES LIQUOR DISTRIBUTION CENTRE WA AGREEMENT 2009

[4] For the purposes of this Decision, the relevant parts of the Agreement are as follows:

• 7.1 Any dispute arising from this Agreement shall be dealt with in accordance with the following procedure:

(a) The matter shall first be discussed between the employee affected and the appropriate Team Manager.

(b) If not settled the matter shall be discussed between the employee, or where the employee elects, a representative of the employee’s choosing and the relevant warehouse manager or other appropriate representative of the Company. If the matter is not settled at this stage all relevant facts shall be recorded in writing before the matter progresses to the stage in 7.1(c)

(c) If not settled the matter shall be discussed between a senior official of the Union and an appropriate representative of the Company. Provided that an employee may elect to be represented by a person of their choice rather than by a representative or official of the Union.

• 7.5 It will be open to either party at any time to seek the assistance of Fair Work Australia in resolving any dispute in relation to the meaning and/or operation of this Agreement by the processes of conciliation and/or arbitration and to be represented in such proceedings by the representative(s) of their choice.

DISCUSSION AND CONCLUSION

[5] The Applicant and the Employer agree that a dispute exists between them.

[6] The Applicant is seeking a determination from Fair Work Australia that he “return to work” (as set out in the application).

[7] From at least March 2009, the Applicant has had a number of medical practitioners manage his workers’ compensation claim. On 20 January 2010, the Applicant provided the Employer with a certificate from Dr Pavic stating that he was fit to return to pre-injury duties. The Employer’s understanding is that Dr Pavic was not previously involved in his care and has requested that the Applicant undertake an independent medical assessment to determine whether he can safely perform his pre-injury duties.

[8] At the time of lodging the application, the Applicant had not undertaken the independent medical assessment.

[9] A conference of the parties was held on 14 June 2010. At the conference, I invited the Applicant to demonstrate to the Tribunal and the Employer that the dispute arises from the Agreement. While the Applicant referred to the documentation contained in his application, that documentation essentially is correspondence to the Applicant to participate in an independent medical assessment, and the Applicant’s responses.

[10] While the Applicant concedes his employment has not been terminated by the Employer, he asserts that repeated requests for meetings and information which have been denied would indicate the Employer’s desire not to retain him as an employee.

[11] The Occupational Safety and Health Act 1984 provides for a mutuality of obligations. For the Employer this means making an appropriate and suitable assessment of the risks and safety of employees in the workplace.

[12] The Applicant while entitled to preserve his rights in relation to the Workers’ Compensation and Injury Management Act 1981,cannot expect the Tribunal to readily “cut across” the rights and obligations of the Employer under the same statutory framework through a dispute settling procedure in an agreement.

[13] I invited the Applicant to provide further material to the Tribunal and extended that date, via my Associate, to 4:00pm on 23 June 2010. I indicated to the Applicant that should I not receive further material, the application would be dismissed.

[14] No further material was provided by the Applicant.

[15] In conclusion, having examined the material provided by the Applicant and heard submissions in conference, I am satisfied that the dispute which exists between the parties is not a dispute which arises, presents itself from or originates in the Agreement. Accordingly, the application is dismissed.

COMMISSIONER

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